Procedural omissions in notifying complainants of non-prosecution against certain accused do not invalidate an acquittal if substantial evidence inconsistencies exist.

O R D E R

Aggrieved by the acquittal of the accused in C.C No.217/2007 by the Judicial First Class Magistrate Court-I, Cherthala, the de facto complainant (PW5) has filed this revision petition. The case related to the commission of offence under Sections 341, 323, 324 and 427 r/w Section 34 I.P.C.

2. The prosecution case is that on 29.11.2006 at about 3:30 p.m, accused Nos.1 to 4 (respondents 2 to 5) caused destructions to the front glass and bonnet of the mini lorry belonging to PW5 by hitting with a shovel, and thereafter wrongfully restrained and inflicted voluntary hurt upon PW5 by beating with the aforesaid shovel.

3. Before the learned Magistrate, seven witnesses were examined as PW1 to PW7, and five documents were brought on record as Exts.P1 to P5 from the part of the prosecution. One material object was identified as MO1. After analysing the above evidence, the learned Magistrate found that the prosecution failed to prove the charge levelled against the accused. Accordingly, the accused were acquitted under Section 248(1) Cr.P.C. It is aggrieved by the above judgment rendered by the learned Magistrate on 21.04.2009 that the de facto complainant/PW5 has filed this revision petition.

4. The respondents 2 to 5 appeared through their counsel, but no arguments were advanced from their part.

5. Heard the learned counsel for the revision petitioner, and the learned Public Prosecutor representing the State of Kerala.

6. In addition to the de facto complainant, who was examined as PW5, the prosecution had examined two witnesses as PW1 and PW2 for establishing the occurrence of the crime. However, the above two witnesses examined as PW1 and PW2, turned hostile and discredited the prosecution story. Though PW5 tendered evidence in support of the prosecution version, the Trial Court found serious inconsistencies and incompatibilities, rendering his evidence unacceptable. The learned Magistrate had observed that the evidence tendered by PW5 about the injuries sustained by him upon his forearm, back and chest, were not supported by Ext.P1 wound certificate and the evidence of PW3, the Doctor who treated PW5. As regards the abrasion in the nose noted in Ext.P1 wound certificate, the learned Magistrate observed that PW5 was not having a complaint in Ext.P3 first information statement that he sustained such an injury. The learned Magistrate also adverted to the delay in seeking treatment by PW5 for the injuries said to have been sustained by him at the hands of the accused. It is after taking into account all the above vitiating circumstances, that the learned Magistrate came to the conclusion that the prosecution failed to establish the offences alleged against the accused. There is absolutely no reason to interfere with the aforesaid finding of the learned Magistrate, in exercise of the revisional powers of this Court. The analysis of the evidence in the above regard, cannot be termed as perverse or in blatant violation of the principles of law.

7. The learned counsel for the petitioner argued that the petitioner suffered gross illegality due to the act of the Trial Court accepting the final report filed in this case, exculpating two persons which the petitioner had mentioned in his first information statement. According to the learned counsel, the Trial Court ought to have given notice to the petitioner before proceeding with the final report to the exclusion of the above two persons, against whom he raised specific allegations of inflicting physical torture upon him. The law laid down by the Hon’ble Supreme Court in Bhagwant Singh v. Commissioner of Police and Another [1985 KHC 610] is relied on by the learned counsel in support of the above argument. In the aforesaid